United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006
Charles R. Fulbruge III
Clerk
No. 05-40635
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BALDOMERO ACUNA-SALAZAR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-279-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Baldomero Acuna-Salazar (Acuna) pleaded guilty to illegal
reentry after deportation and was sentenced to 70 months of
imprisonment and two years of supervised release. Acuna’s
constitutional challenge to the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b) is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Acuna contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-40635
-2-
Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S.
466 (2000), we have repeatedly rejected such arguments on the
basis that Almendarez-Torres remains binding. See United States
v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied,
126 S. Ct. 298 (2005). Acuna properly concedes that his argument
is foreclosed in light of Almendarez-Torres and circuit
precedent, but he raises it here to preserve it for further
review.
Acuna also argues that the district court erred in ordering
him to cooperate in the collection of a DNA sample as a condition
of supervised release and that this condition should therefore be
vacated. This claim is dismissed for lack of jurisdiction
because it is not ripe for review. See United States v.
Riascos-Cuenu, 428 F.3d 1100, 1101-02 (5th Cir. 2005), petition
for cert. filed (Jan. 9, 2006) (No. 05-8662).
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.